FBI Bows to Modern Realities, Eases Rules on Past Drug Use
Policy Change Comes as Agency Struggles to Fill Openings

By Dan Eggen
Washington Post Staff Writer
Tuesday, August 7, 2007

The buttoned-down FBI is loosening up: Under a little-noticed new hiring policy introduced this year, job applicants with a history of drug use will no longer be disqualified from employment throughout the bureau.

Old guidelines barred FBI employment to anyone who had used marijuana more than 15 times in their lives or who had tried other illegal narcotics more than five times.

But those strict numbers no longer apply. Applicants for jobs such as analysts, programmers or special agents must still swear that they have not used any illegal substances recently -- three years for marijuana and 10 years for other drugs -- but they are no longer ruled out of consideration because of more frequent drug use in the past.

Such tolerance of admitted lawbreaking might seem odd for the FBI, whose longtime director J. Edgar Hoover once railed against young thugs filled with "false courage from a Marijuana cigarette."

But FBI officials say the move is simply an acknowledgment of reality in a country where, according to some estimates, up to a third of the population has tried marijuana at some point.

The loosened standards also come as the FBI struggles to fill the jobs it has -- particularly in the areas of counterterrorism and intelligence, which draw from a more varied pool of applicants than traditional agent positions.

"One of the things we came to realize was that our drug policy was largely out of step with the rest of the intelligence community and much of the law enforcement community," said Jeffrey J. Berkin, deputy assistant director of the FBI's security division, which implemented the new guidelines. "We're going to focus less on a hard number and more on a whole-person approach. . . . The new policy just allows us a little more flexibility than the old policy."

Even with the new, looser standards, the FBI's drug-use policy is still among the toughest in federal government and stricter than those of most private companies, Berkin and outside experts note.

The CIA, for example, requires only that applicants have not used illegal drugs within the past 12 months, although "illegal drug use prior to 12 months ago is carefully evaluated during the medical and security processing," according to an agency advisory.

Even the Drug Enforcement Administration leaves open the possibility of hiring employees who admit to "youthful and experimental use of marijuana."

"Such applicants may be considered for employment if there is no evidence of regular, confirmed usage and the full-field background investigation and result of the other steps in the process are otherwise favorable," according to the DEA's Web site.

At the FBI, the new rules allow the bureau to consider "all relevant facts, including the frequency of use," in deciding whether someone's drug history should bar a candidate from becoming an FBI employee.

"Someone who was actually an addict is probably not going to satisfy our needs," Berkin said. "Our standards are still very high. The level of drug history would still have to be something that we would characterize as experimental."

Mark A. de Bernardo, executive director of the Institute for a Drug-Free Workplace, a nonprofit group, said he applauds the FBI for dropping its numerical measures, in part because such requirements could run afoul of disability discrimination laws.

"Someone who may have engaged in illicit drug use 20 years ago -- to say that person can never work at the FBI, that they can never be rehabilitated, would be not only inappropriate but possibly illegal," de Bernardo said. "I don't think this is sending a weaker message; I think the message can be just as strong, which is that we expect you to be drug-free."

Under the FBI's previous policy, many job applicants who, for example, had experimented with marijuana in college often had difficulty recalling precisely how many times they may have used the drug, according to FBI officials and others. Even the definition of what constituted a single use -- one joint? a whole night of partying? -- was open to debate.

"We found it was difficult to draw a meaningful distinction between, for example, 15 uses of marijuana or 16 uses," Berkin said. "It was very arbitrary."

Such uncertainty frequently led to problems on polygraph tests, which the FBI administers to all new employees. You cannot be hired if you are deemed to have failed the polygraph test.

"It was the drug question that was tripping up the most people," said Mark S. Zaid, a Washington defense lawyer who handles many employment disputes involving the FBI and other intelligence agencies. "They realize they were losing good people."

Bruce Mirken, communications director for the Marijuana Policy Project, which advocates looser restrictions on marijuana use, called the policy change "a small step towards sanity" by the FBI.

"What it really does reflect is a reality that lots and lots of people in this society have used marijuana -- some of them have used it a fair amount -- and have gone on to become capable and effective citizens," Mirken said. "Are we really going to stop all those folks from serving our country?"

Rafael Lemaitre, a spokesman for the White House's Office of National Drug Control Policy, said there is no set standard governing past drug use for prospective federal employees. But Lemaitre and others said the FBI's new policy reflects a broader trend.

"Increasingly, this is less about someone who smoked pot a couple times when they were a kid in college and more about 'Do you have a drug problem now and are you lying about it now?' " Lemaitre said. "That's the shift you're seeing in both the private and public sectors."